Netzer, Randy v. Office Of Lawyer Regulation et al

Filing 38

ORDER granting 28 Motion for Leave to File an Amended Brief; denying as unnecessary 30 Motion for Extension of Time to Appeal; granting 32 Motion for Leave to Appeal in forma pauperis; denying 22 Motion for Reconsideration. Signed by District Judge William M. Conley on 9/22/2016. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RANDY JOSEPH NETZER,
Plaintiff,

OPINION AND ORDER

v.
16-cv-175-wmc
OFFICE OF LAWYER REGULATION,
MATTHEW ANICH AND WISCONSIN
DEPARTMENT OF REVENUE,
Defendants.
On June 29, 2016, this court dismissed pro se litigant Randy Netzer’s appeal from
an order of the United States Bankruptcy Court for the Western District of Wisconsin,
having concluded that it lacked jurisdiction because Netzer filed his appeal well past the
14-day deadline set forth in Federal Rule of Bankruptcy Procedure 8002. Netzer has
now filed a motion for reconsideration of this court’s June 29 order (dkt. #22), as well as
a motion for leave to file an amended brief in support (dkt. #28), a motion for extension
of time to file an appeal (dkt. #30), and a motion for leave to proceed in forma pauperis
on appeal (dkt. #32).
In his motion for reconsideration and amended brief, Netzer argues that his
appeal of the bankruptcy court’s order should be allowed to proceed for three primary
reasons: (1) the district court has statutory authority to extend the time for filing an
appeal of a bankruptcy decision; (2) the district court should permit Netzer to proceed
based on principles of equity and fairness; and (3) defendants should be found to be in
default because they have never responded properly to this case either at the bankruptcy
court or in this court. None of these arguments address the fundamental problem here:

as a result of plaintiff’s delay in filing an appeal, this court has no jurisdiction over his
case.
As this court explained in its original order of dismissal, the 14-day deadline for
filing a notice of appeal of a bankruptcy order is jurisdictional and may only be extended
by the bankruptcy court under very limited circumstances. See In re Sobczak-Slomczewski,
826 F.3d 429, 432 (7th Cir. 2016); Fed. R. Bankr. P. 8002(d). Nevertheless, Netzer
argues that bankruptcy rules 8026(b)(1) and 9029 permit this court to extend his time
for filing an appeal, as both of these rules allow district courts to regulate bankruptcy
procedure “when there is no controlling law.” The trouble with this argument, however,
is that there is controlling law that sets forth the specific instances in which the time to
appeal may be extended, and none of them involve this court. On the contrary, the sole
authority to evaluate the propriety of an extension to the bankruptcy court. See Fed. R.
Bankr. P. 8002(d), 9022. See also In re Sobczak-Slomczewski, 826 F.3d at 432 (“[R]ule
[8002] allows the bankruptcy court to extend the time to appeal due to excusable neglect
upon a motion filed within 21 days after the 14-day period has expired.”) (emphasis in
original). Thus, neither the rules cited by Netzer, nor principles of equity, give this court
the authority to extend Netzer’s time for appeal.
Netzer’s argument that defendants are in default does not help him either, since
any default has no bearing on whether Netzer’s appeal was untimely.

Moreover,

arguments related to defendants’ actions (or inaction) in the bankruptcy court should
have been raised there. Regardless, these arguments do not change his untimely appeal,
nor grant this court jurisdiction that is expressly denied as a result. Accordingly, Netzer’s
2

motion for reconsideration must be denied.
As for Netzer’s motion to extend his deadline for appealing to the Seventh Circuit,
that motion will be denied as unnecessary. Under Fed. R. App. P. 4(a)(4), he has 30
days from today’s date to file an appeal.
Finally, Netzer’s motion for leave to proceed in forma pauperis on appeal will be
granted.

First, Netzer’s financial affidavit indicates that he is not able to pay the

appellate filing fee. Second, although certainly approaching the frivolous, this court will
not certify that Netzer’s appeal is taken in bad faith. See Fed. R. App. P. 24(a)(3).

ORDER
IT IS ORDERED that:
(1)

Plaintiff Randy Netzer’s motion for leave to file an amended brief
(dkt. #28) is GRANTED.

(2)

Plaintiff’s motion for reconsideration (dkt. #22) is DENIED.

(3)

Plaintiff’s motion for extension of time to appeal is DENIED as
unnecessary.

(4)

Plaintiff’s motion for leave to proceed in forma pauperis on appeal
(dkt. #32) is GRANTED.

Entered this 22nd day of September, 2016.
BY THE COURT:
/s/
________________________
WILLIAM M. CONLEY
District Judge

3